Journal articles on the topic 'Legal theory, jurisprudence and legal interpretation'
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Łakomy, Jakub. "Critical Jurisprudence of Duncan Kennedy and the Status of the Theory of Legal Interpretation." Krytyka Prawa 12, no. 3 (September 15, 2020): 70–89. http://dx.doi.org/10.7206/kp.2080-1084.396.
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Zirk-Sadowski, Marek. "Problemy wyboru pomiędzy konkurującymi modelami wykładni prawa." Przegląd Prawa i Administracji 104 (October 19, 2016): 155–69. http://dx.doi.org/10.19195/0137-1134.104.10.
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PROBLEMS OF CHOICE BETWEEN COMPETING MODELS OF THE INTERPRETATION OF THE LAWThe plurality of theories of legal interpretation is well described in the legal literature. According to the author, the choice between the models of interpretation has to be based on the thesis that the full conception of the legal interpretation includes three levels of reflection: firstly, epistemology established for the theory of the interpretation, secondly, determining the relation between the theory of the interpretation and interpretative doctrine ius interpretandi and thirdly, structure of the theory of the interpretation which is a result of methodological solutions accepted by the type of jurisprudence. The paper has been devoted to discussing these three problems.
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Bekrycht, Tomasz, and Rafał Mańko. "Polish Jurisprudence in the 20th Century: A General Overview." Review of Central and East European Law 45, no. 2-3 (June 23, 2020): 181–99. http://dx.doi.org/10.1163/15730352-04502001.
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The present paper provides a general overview of the sources of inspiration and main currents in Polish jurisprudence in the 20th century, especially in the post-War and contemporary period. The paper notes that the main sources of inspiration in the early 20th century included Leon Petrażycki, Bronisław Wróblewski, Czesław Znamie-rowski and Jerzy Lande, who exerted a great influence on the first generation of Polish post-War legal theorists. The Lvov-Warsaw school of analytical philosophy also had a huge impact on Polish jurisprudence, as the school to a large extent determined the research questions posed by Polish legal theorists. Indeed, analytical legal theory can be said to have dominated Polish jurisprudence from the 1950s up to the end of the 1980s. After 1989, a broad current of new philosophical approaches to jurisprudence emerged, including legal hermeneutics and philosophies of interpretation, legal ethics, postmodern and critical legal theory, the phenomenology of law as well as an original Polish achievement – the legal theory of ‘juriscentrism’.
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Bilozʹorov, YE. "Jurisprudence activity based theory: general characteristics." Uzhhorod National University Herald. Series: Law, no. 70 (June 18, 2022): 19–23. http://dx.doi.org/10.24144/2307-3322.2022.70.2.
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The article is devoted to general characteristics of the activity based theory as a constituent of jurisprudence, a theory by means of which legal phenomena can be interpreted. It is emphasized that the activity based theory could be methodological means of knowledge of law that has not become the subject of comprehensive knowledge at present. It is noted that psychology has long considered the theory of activity as a constituent part of the epistemology of its subject, but there were not conducted comprehensive research of the activity based theory as a component of jurisprudence within the domestic legal science.
Attention is paid on three components of the theory of activity allowing us to consider it as a possible constituent of jurisprudence. The object is the first crucial feature of the activity based theory. Legal phenomena as dynamic phenomena are being the object of the activity based theory that in turn is a component of jurisprudence The second important characteristic feature of the activity based theory is the content The activity based theory is a system of knowledge about legal phenomena. This knowledge allows revealing the essence, functioning and legal phenomena’s development tendencies. The third significant characteristic feature of the activity based theory is the conceptual and categorical apparatus. It is noted that the terminology of the theory of activity largely includes terms inherent in everyday language, and such a feature of the theory of activity terminology has not interfered with the possibility of its use in explaining psychological phenomena.
It is summarized that the further national legal system development aimed at entering the European legal culture involves a change in the paradigm of perception of law, and interpretation of legal phenomena. One of the important means of ensuring the effectiveness of law and overcoming legal dogmatism is the jurisprudence activity based theory. The potential epistemological possibilities of the theory of activity in the field of law are determined by the inherent human nature of the desire for activity, coexistence in law and order, and the connection of law with the human state of mind. The jurisprudence activity based theory can be a means of interpreting of legal phenomena as dynamic phenomena. The social nature of law determines the variability of law that should correspond to the relations governed by legal norms. The jurisprudence activity based theory allows finding out legal phenomena’s origin, functioning and trends in their development.
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Frolova, Elizaveta A. "V.S. Gruzdev. Realism in jurisprudence: theoretical, methodological and historical aspects." Gosudarstvo i pravo, no. 5 (2022): 181. http://dx.doi.org/10.31857/s102694520019746-1.
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In the review of V.S. Gruzdev’s monograph “Realism in jurisprudence: theoretical, methodological and historical aspects” it is noted that the research of the author of the reviewed work seems to be in demand by modern philosophy and jurisprudence. The purpose of this monograph is to study on the basis of original texts the main directions of legal realism as a paradigm of legal understanding in the context of its genesis, typology, main interpretations and directions of development, to show its evolution and interpretation. To achieve it, the author solves a number of theoretical, methodological and methodical tasks: generalizes approaches in domestic and foreign literature to the interpretation and justification of realism as a theoretical and methodological attitude and method of cognition of law; identifies the main directions of evolution and typology of conceptual legal realism; explores the concept of activity as a semantic characteristic of legal practice; analyzes the most significant trends in the evolution of legal realism in the history of Western European and Scandinavian legal thought; explores the specifics of American legal realism; determines the role of realism among the dominants in the history of Russian legal thought. The issues raised in the monograph and their presentation are of interest for further scientific research in the field of theory, Philosophy and Sociology of Law, history of political and legal doctrines, history and methodology of legal science.
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Minchenko, Olha. "Perception of law through the prism of legal and linguistic theory." Naukovyy Visnyk Dnipropetrovs'kogo Derzhavnogo Universytetu Vnutrishnikh Sprav 1, no. 1 (March 29, 2021): 48–53. http://dx.doi.org/10.31733/2078-3566-2021-1-48-53.
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The relevance of the article is stipulated by the necessity to involve in jurisprudence the results of research obtained by intersectoral science – legal linguistics, the provisions of which are an important methodological basis for knowledge of law in postmodern society. The aim of the paper is to elucidate the importance of understanding law in modern conditions by means of legal and linguistic theory. It is noted that in the conditions of postmodern society objects and phenomena are perceived through different discourses, actualizing the issue of hermeneutics. Including in the field of epistemology of legal phenomena and processes. The papers of domestic scholars, the object of which is the issue of legal linguistics and which are divided into two groups are analyzed: papers of specialists in the field of linguistics (in these papers the attention of scholars focuses on linguistic features of legal texts - stylistics, morphology, etc.) and legal publications on certain aspects of legal linguistics. It is substantiated that within the framework of domestic jurisprudence the subject of legal and linguistic theory as a component of jurisprudence and, accordingly, the perception of law by means of the provisions of legal linguistics is poorly studied. Emphasis is placed on the fact that legal and linguistic theory, as a component of jurisprudence, provides an understanding of law, legal phenomena and processes by means of the social and cultural context in general and language, in particular, which connects it with theories of law understanding and law enforcement. It is the paradigmatic nature of legal and linguistic theory that allows us to perceive legal phenomena in a new way. It is emphasized that the legal and linguistic theory of jurisprudence does not consider law separately, language separately, and does not emphasize one of these objects; within it there is a single object - law and language. It is summarized that in the conditions of postmodern society there is a rethinking of social phenomena, including law. Hermeneutic interpretation becomes crucial epistemological tool of the humanities. In the awareness that legal phenomena and processes are not limited to the text of the legal act, and law is interpreted as an act of speech communication, it is legal linguistics that could become an adequate response to modern challenges.
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Nelson, B. L. S. "Hobbes’s Third Jurisprudence: Legal Pragmatism and the Dualist Menace." Canadian Journal of Law & Jurisprudence 33, no. 1 (February 2020): 183–214. http://dx.doi.org/10.1017/cjlj.2019.35.
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This paper explores the possibility that Hobbesian jurisprudence is best understood as a “third way”? in legal theory, irreducible to classical natural law or legal positivism. I sketch two potential “third theories”? of law—legal pragmatism and legal dualism—and argue that, when considered in its broadest sense, Leviathan is best viewed as an example of legal pragmatism. I consider whether this legal pragmatist interpretation can be sustained in the examination of Leviathan’s treatment of civil law, and argue that the pragmatic interpretation can only be successful if we can resolve two textual issues in that chapter. First, while Hobbes argues that law entails the existence of public (sharable) reasons, he does not adequately defend the view that the sovereign is the unique authority over such reasons in all cases, especially as far as they concern known collective emergencies. Second, Hobbes both affirms and denies that a sovereign can fail to do justice, which is paradoxical. Both problems are best resolved by legal pragmatism, though the second problem resists a fully satisfying resolution. The upshot is that, although Leviathan ought to be regarded as an episode of legal pragmatism, there are trade-offs on every reading.
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Bekrycht, Tomasz. "Jerzy Wróblewski’s Concept of Legal Interpretation in its Axiological and Epistemological Context." Review of Central and East European Law 45, no. 2-3 (June 23, 2020): 217–28. http://dx.doi.org/10.1163/15730352-04502002.
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The work of Jerzy Wróblewski has had a huge impact not only on the theory and philosophy of law, both in Poland and internationally, but also on the whole of jurisprudence, especially the fields of doctrinal legal research and the practical application of the law (in particular on adjudication). The aim of this study is to present one of Wróblewski’s most influential concepts, namely the theoretical model of judicial interpretation, from the point of view of axiology and epistemology in the field of jurisprudence.
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Vlasenko, Nikolay A. "Leader in law theory: in memory of Alexander Fedorovich Cherdantsev." RUDN Journal of Law 25, no. 4 (December 15, 2021): 917–29. http://dx.doi.org/10.22363/2313-2337-2021-25-4-917-929.
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The article is dedicated to the memory of Professor A.F. Cherdantsev, a well-known Russian legal theorist. In the focus are creative periods of the scientist's life. Particular attention is paid to his contribution to the development of legal science with the emphasis on law interpretation, scientists achievements in the field of investigating epistemological nature, values (principles) of interpretation of legal norms, formulation of linguistic, systemic and other rules. The author's contribution to the development of methodology of law and his criticism of the integrative approach in jurisprudence have also been illustrated. The article analyzes the scholars development of the legal norm doctrine, its structure, technical and legal regulations, etc. His contribution to the development of educational literature is separately considered and highly appreciated. The tribute is also given to his individual scientific papers. It is proposed to systematize and republish Professor Cherdantsevs works.
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Sichevliuk, V. A. "Interrelation of theoretical concepts of jurisprudence and legal practice (using the example of the category «legal subjectity»)." INTERPRETATION OF LAW: FROM THE THEORY TO THE PRACTICE, no. 12 (2021): 94–99. http://dx.doi.org/10.33663/2524-017x-2021-12-15.
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The article discusses the interrelation between theoretical concepts of jurisprudence and legal practice on the exampleof the category «legal subjectity». With an indication of real practical situations, the necessity of implementing the relevant theoretical achievements of legal science in the standards of practical legal activity is justified. It is noted that at the level of practice the integral content of legal categories, principles and other theoretical concepts of jurisprudence is inevitably operationalized and takes the form of terms. At the same time, the requirement for the unambiguity of the latter creates a constant need for practice in interpreting their content. The correct interpretation of the terms involves a combination of the achievements of theory and practical experience. Deviation from this rule leads to errors in terminology and mistakes in the interpretation of law. Attention is drawn to the need of using in the texts of judicial, administrative, contractual, and other documents the correct wording on the legal subjectity of separated units and governing bodies of legal entities. The contradictions of the notion of «complex legal entity» are also highlighted. Examples are given of how the legislative acts of Ukraine in some cases do not correspond to the basic principles of the legal entity institution, allowing the existence in the internal organizational space of legal entities of other legal entities. It is emphasized that this status of structural subdivisions of organizations and public authorities contradicts the need to ensure their organizational integrity as subjects of law, endowed with a complete kind of legal subjectity, namely «personal legal subjectity». Keywords: theoretical concepts of jurisprudence, category «legal subjectity», legal entity, personal legal subjectity, structural division of a legal entity.
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Puchkov, V. O. "Concept-terminological apparatus of legal science and the prospect of “machinization” of law: is it possible to represent the legal constructions by the means of λ-calculus?" Law Нerald of Dagestan State University 40, no. 4 (2021): 36–42. http://dx.doi.org/10.21779/2224-0241-2021-40-4-36-42.
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The article examines the problem of legal constructions’ interpretation in the context theory of Ȝ-calculus as logical foundation of modern programming languages. The purpose of the study is to show the methodological obstacles to the “machinezation” of law, caused by the specifics of jurisprudence’ conceptoterminological apparatus. The methodological basis of the research is represented by the philosophical concepts of knowledge, function and concept, the dialectical method, metascientific means of cognition (system approach, logical method of Ȝ-calculus), special methods of legal science (legal dogmatic and legal exegesis). The study concludes that the dogmatic principles of jurisprudence, the concepto-terminological apparatus of which largely determines the content of positive legal norms, impede the algorithmicization of legal constructions and, in current conditions, make it impossible to form the so-called "machine-readable" law
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Savenkov, Dmitry Aleksandrovich. "The problem of theoretical-methodological “refinement” of jurisprudence." Юридические исследования, no. 12 (December 2021): 1–9. http://dx.doi.org/10.25136/2409-7136.2021.12.37178.
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The subject of this research is the essential characteristic of the history of legal thought of the last two centuries, which directly pertains to the theoretical-methodological fundamentals of legal theory. In the conditions of the object-disciplinary establishment of legal science as the theory of law since the end of the XVIII century, crucial significance has acquired the orientation towards demarcation of logical-gnoseological and real-psychological aspects of legal understanding. The article analyzes the peculiarities of the corresponding theoretical-methodological opposition, which manifested in the appeals to the construction of “refined” legal concepts that exclude any real arguments of social, historical, political, or psychological nature. By the end of the XIX century, namely in the field of the philosophy of law, has escalated the competition between psychologism and anti-psychologism in law. The novelty of this research lies in determination of the new patterns of theoretical and methodological opposition of psychological and anti-psychological attitudes of legal understanding in the evolution of legal thought in contemporary history. It is demonstrated that the phenomenological approach, which claimed to provide jurisprudence with an authentic scientific methodological apparatus, reduced the problem of legal understanding, however, did not contribute to the adequate understanding of law as a complex gnoseological object. Anti-psychological classification of phenomenology cannot be acknowledged without a profound analysis of the conceptual framework that contributed to the evolution of this approach in the sphere of cognition and interpretation of law.
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He, Huanhuan, and Xiaobo Dong. "Semiotics, language, and law: the linguistic turn in Western jurisprudence." Chinese Semiotic Studies 18, no. 1 (February 1, 2022): 147–68. http://dx.doi.org/10.1515/css-2021-2052.
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Abstract In the latter half of the 20th century, with the development of philosophy studies, Western jurisprudence also witnessed a linguistic turn in its field. A series of academic schools appeared consecutively, such as the school of semantic analysis, the school of new rhetoric, the school of legal interpretation, and the school of structural semiotics. Their analytical paradigms, which were skeptical of the views of legal languages in traditional theories of jurisprudence, are interdisciplinary and multidimensional in nature and characteristics. Normally, there are three methods used in the linguistic turn of Western jurisprudence, that is, the method of symbolic restoration, the method of structural and functional analysis, and the method of legal hermeneutics. Promoted by the linguistic turn, two traditions of legal semiotics also developed. One is the legal theory based on Greimasian semiotics, and the other is based on Peircean semiotics. The linguistic turn in jurisprudence still represents a breakthrough and innovation in the paradigm of legal theoretical studies, as it leads to a re-examination of language, which is no longer treated as a tool but as a philosophical afterthought in relation to the human being.
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Horgos, Lívia. "Thoughts about the Definition of Ius Puniendi in Legal Theory." Belügyi Szemle 69, no. 1 (May 6, 2021): 9–19. http://dx.doi.org/10.38146/bsz.spec.2021.1.1.
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In my paper I deal with the jurisprudential interpretation of ius puniendi by providing a historical overview of theories concerning this notion in a time span of almost 6000 years until it became a state monopoly and the humanization of criminal law. The interpretation of ius puniendi as the legal ground of punishment is based on different principles in different ages. The jurisprudential interpretation becomes less relevant with the birth of the legal state, when ius puniendi is a state monopoly. Nowadays the meaning of ius puniendi has been modified and broadened with new, different elements, since the principle of opportunity plays a more decisive role in the criminal law systems of modern states. In my study I interpret and examine ius puniendi unlike the classical authors of criminal law, i.e. a notion referring to the legal ground of punishment, but in its original meaning, i.e. the right of punishment, because of its modern function. With my work my aim is to answer the question whether the dogmatically elaborated category of ius puniendi has to be incorporated into the substantive and procedural jurisprudence of the 21st century.
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Timoshina, Elena V., and Viacheslav E. Kondurov. "Searching the Lost Meaning: Legal Interpretation in the Situation of the Death of Legislator." Voprosy Filosofii, no. 10 (2022): 29–43. http://dx.doi.org/10.21146/0042-8744-2022-10-29-43.
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The article is concerned with the problem of relativisation of the philosophical grounds of the legal interpretation theory. The latter include ideas about the text and reality relationships, the interpreter’s ability to cognize the meaning of the text, and ethical principles of dealing with the text, its author, and its meaning. The article is discussing the author- (logo-) centric approach to the interpretation of authoritative texts, which used to be common for medieval scholasticism and jurisprudence and was conditioned by the genealogy of these two disciplines. The authors show how the consequent proclamation of the death of the signifier (God and the Author) and the signified (sign) affected the theory of legal interpretation. It is pointed out that the semantic voluntarism of the judge-interpreter and the absence of any ethical restraints in dealing with the author, text and meaning as the main consequence of the destruction of its logocentric foundations. The metaphor of the death of the legislator is introduced, with the help of which the distrust of the legislator as a source of meaning, which is widespread in modern theories of legal interpretation, can be recorded. When applied in jurisprudence, such theoretical conceptions can generate political effects in the legal order, changing the perception of the separation of powers and the subject of sovereignty. In the conclusion, the authors defend the position of interpretative realism, which obliges the interpreter to reveal the meaning invested in the text by its author.
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Mulcahy, Sean. "Silence and Attunement in Legal Performance." Canadian Journal of Law and Society / Revue Canadienne Droit et Société 34, no. 2 (August 2019): 191–207. http://dx.doi.org/10.1017/cls.2019.18.
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AbstractWhilst the law maintains a right to silence, the sensorial and performative dimensions of that silence are seldom considered. This paper adopts an interdisciplinary approach, informed by legal theory and scholarship in the performing arts, such as theatre, performance studies, and music, as a way of understanding how silence plays in the court. The paper offers a typology to navigate the interpretation of silence in legal performance—both verbal and environmental—and to frame discussion of silence’s impact on the legal audience. The author concludes that silence is used and experienced in a similar way in legal and theatrical performance, namely as a means of attunement. The paper contributes new insights into the existing scholarship on acoustic jurisprudence and invites listening to the gaps in speech, the pauses, the background noise, and the silence in the court.
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Marinković, Tanasije. "Barak’s Purposive Interpretation in Law as a Pattern of Constitutional Interpretative Fidelity." Baltic Journal of Law & Politics 9, no. 2 (December 1, 2016): 85–101. http://dx.doi.org/10.1515/bjlp-2016-0013.
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Abstract Political jurisprudence points out that constitutional court judges sometimes act like political actors, and that their decisions are a function of strategic and ideological as much as legal considerations. Consequently, the proper role of the courts, notably in exercising their review of constitutionality, has been one of the most debated issues in modern political and legal theory. Part of the controversy is also how to measure the interpretative fidelity of judges to the constitutional texts, or conversely, the level of their political engagement. This paper argues for the reconsideration of Aharon Barak’s Purposive Interpretation in Law in that light. Barak’s work was intended to provide, in the first place, judges and other lawyers with a sort of judicial philosophy – a holistic system of legal reasoning, applying both to the interpretation of will, contract, statute and constitution. Nevertheless, these conventions of legal reasoning, modified and readapted, could well be used also as heuristic tools by the academics in measuring the interpretative fidelity of judges to various sources of law. Accordingly, this paper clings closely to the presentation of Barak’s precepts for the purposive interpretation of constitutions, by focusing on the notions of subjective and objective purpose in interpreting constitutions, and how the potential conflicts between these purposes are resolved.
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M. A., Belova. "Theory of Interpretation of Law in Modern German legal Doctrine." Rossijskoe pravosudie, no. 9 (August 23, 2021): 13–19. http://dx.doi.org/10.37399/issn2072-909x.2021.9.13-19.
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Currently, in the legal doctrine of Germany, a heated discussion continues between representatives of the objective and subjective schools of interpretation. Opponents of the objective theory argue that the mistakenly called «objective» method, which largely supplants the will of the legislator, leads to the fact that from a rule of law based on the principle of separation of powers, Germany turns into a «state of judges». The purpose of this work is to study the content and topical problems of objective and subjective theories of interpretation of law in the modern German legal doctrine. To achieve this goal, the following tasks are being solved: the analysis of the content and structure of theories of interpretation in the modern legal doctrine of Germany is carried out; defines the distinction between the concepts of interpretation (Auslegung) and development (Rechtsfortbildung) of law; analyzes the position of the Federal Constitutional Court of the Federal Republic of Germany on the choice of the method of interpretation; the position of German legal scholars on the admissibility of «judicial law» is analyzed. In the course of the study, the following methods were used: analysis and synthesis, hermeneutic, comparative method. As a result of the study, it was possible to come to the following conclusions: 1) in contrasting the subjective and objective theories of the interpretation of normative legal acts in the modern German legal doctrine, the complex difference between the interpretation (Auslegung) and the development of law (Rechtsfortbildung) is considered, for the substantiation of which changing semantic theories are used, which are based not only on a methodological problem, but also, possibly, a different understanding of the Constitution and ideas about the tasks, as well as the boundaries of jurisprudence. Subjective theory attaches decisive importance to the regulative will of the legislator, the correct method of interpretation according to this theory is to first investigate the historical prescription and purpose (Zweck). The objective theory, on the contrary, proceeds from the idea that the law from the moment of publication «breaks away» from the legislator and henceforth is independent, so that the will of the rulemaker no longer matters; 2) the need for a clear delimitation of the judicial development of law from interpretation. The limitation of judicial possibilities in the interpretation and development of law lies in the fact that they must be carried out according to the accepted rules of interpretation. The established methodology, that is, the formal correctness of the trial, provides, to a certain extent, confidence in the material correctness of the decision and prevents arbitrariness.
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Schröder, Jan. "Legal Methodology in the German Dictatorships." Juridica International 26 (November 13, 2017): 16. http://dx.doi.org/10.12697/ji.2017.26.02.
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The article compares the legal methodologies in the National Socialist State (NS, 1933–1945) and in the German Democratic Republic (GDR, 1949–1990). Their concept of law differed in a significant way from the preceding periods. Law was no longer regarded as the will of the community but as the will of the dictator (the ‘leader’ or the party) and at the same time as the utterance of the official ideology. This antinomy between voluntaristic and ideological principle characterises the legal methodology in both dictatorships. The theories of the sources of law are dominated by the voluntaristic, authoritative element. Therefore, the will of the ‘leader’ or the party, i.e., the statute, is the only real source of law. Customary law is negligible, judge-made law is not approved, a court’s right of inspection doesn’t exist. The ideological principle gains much greater importance in the interpretation of the law. In the NS, the law must be interpreted in accordance with the ‘National Socialist ideology’, in the GDR, which is ‘partially’ socialist, according to the communist ideology. The former voluntaristic ‘subjective-historical’ interpretation is abandoned. Jurisprudence in the NS and GDR also demanded ideological, ‘essential’ concepts, whereas the precedent ‘bourgeois’ theory preferred ‘functional’ concepts according to the specific purpose of a statute. The formation of systems failed in both dictatorships, probably because of the ideological setting.
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Svirin, Yury Alexandrovich, Aleksey Vladimirovich Minbaleev, Eduard Eduardovich Artyukhov, Sergej Nikolaevich Shestov, and Aleksey Anatolyevich Davydov. "Influence of legal principles on justice." Cuestiones Políticas 39, no. 70 (October 10, 2021): 915–32. http://dx.doi.org/10.46398/cuestpol.3970.56.
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The objective of the article was to determine the essence and legal implementation in Russia of principles such as: independence of the judiciary, relative truth, contradictory nature, legal certainty of judicial acts and discretion. In the countries of the Roman-Germanic legal order, it is no coincidence that legal principles are of great scientific and applied importance. The presence of a certain system of procedural principles makes it possible to assess the existence of justice in the country, the stability of a judicial decision and the fairness of judicial acts. Thus, the principles of the law directly affect the level of legality in each state. Currently, some procedural principles give rise to a discussion in Russian doctrine about their essence and content. The topic is presented from the point of view of general scientific methods (systems analysis, structural and functional, historical), the method of theoretical analysis, specific scientific methods (comparative jurisprudence, technical and legal analysis, concretization, interpretation). The theoretical basis was cognitive theory. It is concluded that the principle of the independence of the judiciary is not fully operational in the Russian Federation.
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Gaydulin., Oleksandr. "General and Special Theories of Law in International Legal Discourse." Law Review of Kyiv University of Law, no. 1 (May 5, 2021): 312–15. http://dx.doi.org/10.36695/2219-5521.1.2021.61.
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The article is devoted to one important problem of the ratio of various legal theories under the same system, which is associatedwith the process of international cooperation in the legal sphere.As known the system of legal sciences is not a system of co-ordinate ideas, found at one and the same level. It is a hierarchicalstructure of superordinate and subordinate theoretical provisions, whose reciprocal relations are illuminated by the structural analysisundertaken by the Pure Theory of Law (Hans Kelsen). The enquiry into the hierarchical structure of the legal system is the main taskof this article.It was generally accepted that the important step towards the modernization of the systems of legal sciences is the expansion ofinterdisciplinary connections.It is for this purpose that it is necessary together in subordination links to expand coordinate and rewarding relations between scientifictheories. In order to implement this concept, it is proposed to pay attention to the development of the theory of interpretationallaw. During the creation of the lower-level theory, the higher-level general theory determines the content of the special theory.According to the concept presented in the study, the Jurisprudence Systems in European countries are directly formed on the basisof: philosophical hermeneutics, philosophy of common sense and the doctrine of European legal interpretivism.Thus, this paper presents theoretical and methodological frameworks to be taken as a basis of a new civil law interpretation theoryelaboration. Such theory is anticipated to become the basic ideas system of private law convergence, in particular Europeanization ofcontract law, through the coordination of the national legal interpretation institutes.The proposals stemming from this work directed to to solve the praxeological problems of the legal interpretation efficiency inthe context of the Ukrainian private law Europeanization.
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Bilozorov, Y. V. "Activity Approach in Jurisprudence: Application Boundaries and Principles." ACTUAL PROBLEMS OF THE LEGAL DEVELOPMENT IN THE CONDITIONS OF WAR AND THE POST-WAR RECONSTRUCTION OF THE STATE, no. 13 (October 1, 2022): 183–87. http://dx.doi.org/10.33663/2524-017x-2022-13-29.
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The importance of involving new methodological instruments in legal science (in terms of abandoning the prevalence of legal normativism and the proclamation of ideological pluralism) has stipulated the urgency of the research. The aim of the study is to focus the scholars’ attention on the importance of involving into jurisprudence the activity-based theory as a means of interpreting legal phenomena and processes and determining the boundaries and principles of its application. It is noted that quite often domestic scientists while conducting research draw attention to the use of the activity based approach, although they do not reveal its epistemological potential in detail. The connection of the boundaries of the use of the methodological approach in general and the activity based approach, in particular, with the issue of principles of the appropriate approach application (because the principles determine the possible ways of the fundamental provisions of a particular theory use, and its limits) is emphasized. Propaedeutic provisions on the limits and principles of the activity based approach are the issues of distinguishing between scientific and non-scientific knowledge. Karl Popper’s concept of forming a system of new knowledge in terms of requirements for new scientific theory is elucidated. It is pointed out that the activity based theory as an epistemological component of legal science also has its cognitive boundaries: it cannot be used to explain absolutely all phenomena and processes in the field of law. The factors of the activity based theory application limits are binary: on the one hand – it is the very nature of scientific knowledge determining the object of epistemology; on the other hand, it is the nature of the activity itself that limits the effectiveness of the use of the provisions of activity based theory to dynamic phenomena and processes in the field of law. The importance of two principles of the activity based theory application (except for the general scientific principles of objectivity; comprehensiveness and completeness): the principle of the subject and the situational and action principle is emphasized. The first of them is related to the fact that a person with inherent dignity and rights is the main subject of law in a civilized society. The principle of the subject directs to the interpretation of the content of the subject-subject interaction, to the essential characteristics of the subject, and etc. The second principle determines the need to consider the conditions for the implementation of legal provisions, specific life circumstances, subjective elements of the person’s activity. It is concluded that the scientific justification for the involvement of the activity based theory in jurisprudence involves clarifying the possibility of separating scientific knowledge resulting from the use of this theory from non- scientific and determining the boundaries and principles of applying the provisions and conclusions of the theory to interpret legal phenomena and processes. In this case, the theory of activity itself can be a test theory (by Karl Popper’s terminology) or a critique of the test theory (bearing in mind the communicative theory of law). Key words: scientific theory, methodology, jurisprudence, subject principle, theory of activity.
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Łakomy, Jakub. "Koncepcja polityczności Chantal Mouffe a poststrukturalizm w filozofii interpretacji prawniczej." Studia nad Autorytaryzmem i Totalitaryzmem 43, no. 2 (December 27, 2021): 273–79. http://dx.doi.org/10.19195/2300-7249.43.2.17.
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The present article deals with the political nature of the interpretation theory, using poststructuralism as a source of reflection. The analysis is conducted by using poststructuralist epistemology and poststructuralist political theory. The thesis of this article, which is metatheoretical in nature, is that the poststructuralist concepts of legal interpretation can be used only after simultaneously adopting the assumptions of the political philosophy which originated in poststructuralism. Chantal Mouffe’s concept of the political is very much tied to considerations about agonistic democracy and agonistic pluralism, which gives us original answers to the questions of how society, the political system, and the legal system can help us prevent the emergence and flourishing of authoritarianism. The first part of the text presents the poststructuralist definition of the political and politics as well as shows its importance for the analysis of the contemporary legal interpretation concepts. In the next part, the author discusses the topic of poststructuralism in jurisprudence and its most important features for a change in the discourse of philosophy of interpretation. The third part of the article examines poststructuralist anti-essentialism using the example of one from among the most famous neopragmatist and poststructuralist philosophers — Stanley Fish. In the fourth and last part of the considerations, the thesis about the necessity of joint use of poststructuralist epistemology and political theory for research on legal interpretation is verified and metatheoretical conclusions are drawn from it.
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Zirk-Sadowski, Marek. "Metodologie teorii prawa a problem polityczności prawoznawstwa. Aspekt behawioralny i intensjonalny." Przegląd Prawa i Administracji 110 (November 30, 2017): 51–62. http://dx.doi.org/10.19195/0137-1134.110.4.
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THE METHODOLOGIES OF THE THEORY OF LAW AND THE PROBLEM OF THE POLITICAL NATURE OF JURISPRUDENCE. BEHAVIOURAL AND INTENSIONAL ASPECTSThe paper is devoted to the problem of the impact of theory of law methodologies on the political nature of jurisprudence. The author seeks to demonstrate that some theory of law methods are more susceptible to politicisation than other. Referring to H. Hart, he introduces a distinction between the external and internal theories of law. Among the external theories he distinguishes the so-called integrating theories and cognitive theories, while dividing the internal theories into intensional and extensional, drawing on the division of interpretation theories. The author demonstrates that the so-called political nature of theories is aphenomenon most often encountered in internal and intensional approaches. In particular, theories based on the agonistic discourse concept C. Mouffe politicise the legal discourse by strengthening the illocutionary force of political arguments in comparison with legal arguments. Only consensual discourse concepts R. Alexy avoid this danger.
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Kasatkin, Sergey. "Redrawing the Boundaries: R. Dvorkin’s Interpretativism in the Light of Traditional Typologies of Legal Theorizing." Legal Concept, no. 4 (February 2021): 80–88. http://dx.doi.org/10.15688/lc.jvolsu.2020.4.11.
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Introduction: the paper is devoted to the interpretative concept of the outstanding American jurist Ronald Dworkin, formulated in his “Law’s Empire” (1986) and a number of other works. The subject of the paper is the characteristic of R. Dvorkin’s methodological approach. As its basis the author uses the interpretation of a “methodological model” of the thinker, proposed by the Mexican researcher Imer Flores, which is valuable for the effort to relate a (polemical and only partly explicit) approach of the American jurist with the classical criteria system of the typology of legal doctrines. Accordingly, the paper aims to identify (using the general scientific and specific scientific methods) R. Dworkin’s interpretativism in the context of the basic divisions of legal theories in modern Western (Anglo-American) jurisprudence, as well as to establish the impact of interpretativism on existing legaltheoretical typologies. As a result, the paper, first, outlines the key ideas of R. Dworkin’s doctrine, and secondly, examines I. Flores’s interpretation of the content and meaning of the interpretive methodology, thirdly, assesses the validity of such an interpretation with the justification of the status of interpretativism in the system of classical types of legal theorizing and its methodological implications. As a general conclusion, the paper argues for the status of R. Dworkin’s doctrine as a private and normative jurisprudence of the “internal point of view”. I. Flores’s thesis about the unification of traditional types of legal theories in interpretativism and transcending the dichotomy between positivism and natural law is disputed. Interpretativism challenges the established system of criteria for differentiating legal theories, rejecting a number of relevant methodological perspectives, primarily a general descriptive and morally neutral theory of law. By defending a necessary connection between law and morality, interpretativism, in fact, legitimizes the claims of natural-law concepts as to a proper explanation of “law as it is”, transferring their long-standing dispute with positivism to a new – methodological – level.
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Manderson, Desmond. "Athena’s Way: The Jurisprudence of the Oresteia." Law, Culture and the Humanities 15, no. 1 (March 30, 2016): 253–76. http://dx.doi.org/10.1177/1743872116642146.
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This article offers a substantial new interpretation of Aeschylus’ Oresteia, one of the most important literary texts to deal with the question of the rule of law, and one of Western jurisprudence’s founding documents. Perhaps in part because of it has fallen under the shadow of Antigone, the play has tended to suffer from a reductionist reading in which legal reason triumphs over the passions. The present article rereads the text drawing on recent scholarship on Aeschylus’ work. It argues that the central figure of the Furies has been misunderstood: they are not simply expressions of violence and passion; on the contrary, they are the most legalistic of all the figures in the play. The model of judgment introduced by Athena in the resolution of Oresteia does not pit law against emotion, or feud against process, but judgment against law. The trilogy begins by presenting the uncertainty of language as law’s curse, and the certain application of the law its cure; it concludes by radically reframing the question. Now the illusory certainty of law is the curse – and the uncertainty of language its cure. Athena’s way positions legal judgment as something more than the mere following of rules. The article then goes on to show that this approach not only casts a new light on orthodox jurisprudence. It is of profound relevance to the work of Giorgio Agamben and the theory of sovereignty he has famously expounded in Homo Sacer. What ultimately separates Athena’s rule of law from mere decisionism or Agamben’s executive and unlimited sovereignty are the external constraints to which she purposely submits herself. Athena demonstrates a vision of judgment as a participatory and transformative process. Above all, she insists on the essential role of public legal argument and public accountability in a discourse of legal legitimacy, which is not simply limited to judges or particular legal decisions. On the contrary, Athena connects the rule of law to a continuing discussion of legal values and judgments which is never finally settled, and in which all of us, as citizens of Athens, are participants.
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Gavrilova, Yulia A. "LEGAL INTERPRETATION IN RUSSIAN LAW: THE UNITY OF THE METHODOLOGICAL AND ACTIVITY APPROACHES." RUDN Journal of Law 23, no. 2 (December 15, 2019): 200–218. http://dx.doi.org/10.22363/2313-2337-2019-23-2-200-218.
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The problem of legal interpretation in Russian jurisprudence is characterized by an extremely wide range of opinions: from formally dogmatic to postmodern. Every scientist tries to see in the interpretation something «his own». A number of scientists believe that it is possible to discuss the terminology of the question, in particular, the distinction between «interpretation» and «explain». Others consider that the purpose of studying the interpretation is to find the best ways to understand the laws published in the state. For the third, the interpretation is interesting in that it lies at the basis of the discretion of officials in the course of practical work on resolving legal disputes, and this raises questions of the limits of interpretation. For the fourth, the interpretation has the status of an ideological toolkit for solving social problems, for example, in constitutional judicial proceedings. The current doctrinal state of the interpretation problem lags behind the needs of legislation and legal regulation practice. Therefore, the changes in the passport of a scientific specialty 12.00.01 - the theory and history of law and the state; the history of the doctrine of law and the state, which singled out the legal interpretation as an independent method of the study of law, requires due scientific attention. The purpose of the article is to give the author's a generalized idea of the place and meaning of legal interpretation in modern Russian law on the material of available scientific literature. Research methods: formal legal, analysis and synthesis, modeling, extrapolation. The results of the study. The age-old disputes over legal interpretation among scholars and practitioners lawyers, philosophers, politicians are explained by the polysemy of the term «interpretation», which allows considering it, according to the author’s article, in two fundamental meanings: narrow and broad. In a narrow linguistic sense, interpretation is a combination of linguistic methods for analyzing legal texts. In a broadly discursive sense, interpretation is perception, translation (decoding) and extracting the meaning of any legal phenomena. Separately highlighted are the methodological and activity aspects of this problem, focusing respectively on modern approaches to interpreting the phenomena of the entire legal life of society, as an integral part of legal discourse, and traditional approaches to interpretation as special activities aimed at understanding the meaning of textually fixed legal norms using special technical-legal means. It is concluded that the generalized consideration of legal interpretation in modern Russian law is necessary in the unity of the methodological and activity aspects.
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Chagin, I. B. "Detailed Description of Legal Experiment." Siberian Law Herald 1 (2021): 14–18. http://dx.doi.org/10.26516/2071-8136.2021.1.14.
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The phenomenon of a legal experiment and current problems that are of their nature are researched here. The notion of law is based on the instrumental approach and identified as the new tendency of law-making development which lies in necessity to identify possible effects that a regulatory act can have towards social relationships. It is alleged that all jurisprudence practice is made up of estimation procedures. The own interpretation of a “legal effect” is given here. It is identified that some rules of law are not always possible to predict their influence, therefore those who are given law-making authority have to use the mechanism of a legal experiment in their practice. The approaches to understanding of legal experiment that there are in the theory of state and law. They are set out and analyzed extensively. The definition of legal experiment from existing legislation was explored. The approach to understand the legal experiment was formulated. On the one hand, this approach accumulates all previous formulation in this area, but the other hand it proposes new view of nature legal experiment. In the source base has been invested the regulation of existing domestic legislation and also doctrinal writings in this area including foreign-language. There is innovativeness to research the legal experiment here. Innovativeness lies in the integrated vision of nature of legal experiment. It has great mythological importance to all legal science. The conclusion of understanding of legal experiment as a method of legal prediction has been done. There was defined the place of legal experiment in the semantic row of the theory of state and law. The nature of understanding of legal experiment has been determined on the basis of author approach.
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Shaklein, S. N. "Administrative penology: the issues of legal theory." Law Enforcement Review 5, no. 1 (April 17, 2021): 202–11. http://dx.doi.org/10.52468/2542-1514.2021.5(1).202-211.
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The subject. The article is devoted to the analysis of the effectiveness of administrative punishment enforced to persons with deviant behavior of an immoral orientation, and the development of proposals for improving the effectiveness of administrative punishment from a penological point of view. The subject of the research is administrative punishment and the legally fixed type and limits of administrative-tort sanctions, which allow administrative jurisdiction bodies and courts to enforce a specific type and measure of administrative punishment aimed at forming the legality of the behavior of an administrative delinquent. The purpose of the article is to confirm or disprove hypothesis that increasing the effectiveness of administrative punishment will significantly reduce the repetition of administrative offenses due to the educational impact on the consciousness and behavior of administrative delinquents, their moral education. The author analyzes the effectiveness of administrative fine by the repetition of administrative offenses (on all-Russian and regional statistics) and develops proposals for improving the effectiveness of administrative punishment. The methodology. The results of this research were achieved through the use of general scientific methods in the framework of observation, comparative, logical interpretation of legal acts, statistical analysis as well as through the analysis of law enforcement practice. The main results. The analysis of law enforcement practice has shown the ineffectiveness of the administrative punishment imposed on persons with deviant behavior of an immoral orientation. In this regard, the author suggests penological conditions for improving the effectiveness of rule-making and law enforcement practice, points out the need to ensure interaction and cohesion of jurisprudence, sociology of law and legal psychology, methods of persuasion and coercion in the development and application of administrative sanctions measures. It provides maximum flexibility of the final decision, the possibility of taking into account legal, social, psychological, economic and other nuances of the case in order to maximize the impact on the consciousness and behavior of a person for his subsequent correction and re-education, the formation of a persistent habit of lawful behavior. The author also proposes to provide for administrative liability for failure to comply with official warnings about the inadmissibility of actions creating conditions for commission of crimes, of administrative offences or of the inadmissibility of the continuation of antisocial behavior. Conclusions. The issues of increasing the effectiveness of the appointment and execution of administrative punishment need increased attention of the state and urgently require a targeted approach to punishment first of all.
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Bennett, Mark. "Leaving the Hart-Fuller Debate and Reclaiming Fuller: Form, Agency, and Morality in Kristen Rundle's Forms Liberate." Victoria University of Wellington Law Review 44, no. 3/4 (November 1, 2013): 461. http://dx.doi.org/10.26686/vuwlr.v44i3/4.4990.
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Kristen Rundle's Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller provides an excellent analysis and re-interpretation of Fuller's legal theory. Its particular strengths are its comprehensive contextualisation of Fuller's famous arguments about the 'internal morality of law' within a wider project of 'eunomics' – the inquiry in the principles of good social order – and its reorientation of our view of Fuller's thought through his key idea of human agency. This review article sets out Rundle's main claims, and then challenges the argument that HLA Hart's responses to Fuller make him primarily responsible for the neglect and misunderstanding of Fuller's wider project in contemporary legal philosophy.
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Duxbury, Neil. "Exploring legal tradition: psychoanalytical theory and Roman law in modern continental jurisprudence." Legal Studies 9, no. 1 (March 1989): 84–98. http://dx.doi.org/10.1111/j.1748-121x.1989.tb00387.x.
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The idea that psychoanalysis might be of use in the study oflaw and legal activity is by no means anything new. At the beginning of this century, the Russo-Polish jurist Leon Petrazycki proposed a theory of legal psychology, arguing that law, as an intuitively intelligible component of the human mental process, is in essence constituted by individual feelings of moral obligation and responsibility. Around the same time, psychoanalytical theory was beginning to make a slight impact on American and European jurisprudential thinking. This impact was to become all the more significant when, in the 1930s, Thurman Arnold and Jerome Frank presented arguments about the nature oflegal reasoning, and the roles of both academic lawyers and judges, which were very clearly founded upon broad interpretations of psychoanalytic ideas and concepts. In the continental tradition, Hans Kelsen, though in his early work drawing a distinction ‘between pure legal theory and psychological-sociological speculation,’ nevertheless attempted on occasion to conceive of the sovereignty of the state in Freudian psychoanalytic terms
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Feldman, Stephen M. "An Interpretation of Max Weber's Theory of Law: Metaphysics, Economics, and the Iron Cage of Constitutional Law." Law & Social Inquiry 16, no. 02 (1991): 205–48. http://dx.doi.org/10.1111/j.1747-4469.1991.tb00919.x.
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Among legal scholars, Anthony T. Kronman and David M. Trubek have provided the leading interpretations of Weber's theory of law. Kronman and Trubek agree on two important points: Weber's theory is fundamentally contradictory, and Weber's theory relates primarily to private law subjects such as contracts. This article contests both of these points. Building on a foundation of Weber's neo-Kantian metaphysics and his sociological categories of economic action, this article shows that Weber's theory of law is not fundamentally inconsistent; rather it explores the inconsistencies that are inherent within Western society itself, including its legal systems. Furthermore, Weber's insights can be applied to modern constitutional jurisprudence. Weberian theory reveals that modern constitutional law is riddled with irreconcilable tensions between process and substance—between formal and substantive rationality. In the context of racial discrimination cases involving equal protection and the Fifteenth Amendment, the Supreme Court's acceptance of John Hart Ely's theory of representation-reinforcement demonstrates the Court's resolute pursuit of formal rationality, which insures that the substantive values and needs of minorities will remain unsatisfied.
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Bustamante, Thomas. "Law, Moral Facts and Interpretation: A Dworkinian Response to Mark Greenberg’s Moral Impact Theory of Law." Canadian Journal of Law & Jurisprudence 32, no. 1 (February 2019): 5–43. http://dx.doi.org/10.1017/cjlj.2019.1.
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Ronald Dworkin’s philosophy of law, in its mature version, is grounded in at least two central claims: first, a thesis about law and morality, which we might call the One-System Thesis; second, a thesis about how moral and legal propositions can be said to be true or false, which we might call the Interpretive Thesis. While the One-System Thesis holds that law and morality form a single system, the Interpretive Thesis makes two distinct claims: first, truth of interpretive propositions—such as moral and legal propositions—must be established from within the practice in which they figure; second, the soundness of an interpretive proposition is related to the purpose of the practice under consideration. Mark Greenberg’s Moral Impact Theory of Law accepts the One-System Thesis while rejecting the Interpretive Thesis. The Moral Impact Theory is a metaphysical theory of how moral facts rationally determine the content of the law. Its main contention is that the actions of legal institutions have an impact on the moral obligations people have in a polity, and the content of the law is made up of the moral obligations that result from the actions of such institutions. Greenberg assumes that moral facts pre-exist and have some metaphysical priority in relation to legal facts. Moral facts must be prior and independent from legal practice in order to play a part in the rational determination of the content of the law. The point of this paper is to offer a response to Greenberg. I argue that the One-System Thesis only should be supported if the Interpretive Thesis is correct, and that without the latter the former becomes an implausible version of natural law jurisprudence.
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О. M., Kovalchuk. "Promising developments of domestic legal science on legal awareness." Almanac of law: The role of legal doctrine in ensuring of human rights 11, no. 11 (August 2020): 111–17. http://dx.doi.org/10.33663/2524-017x-2020-11-20.
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This article focuses on the problem of legal consciousness, which is one of the most difficult in the theory of law and whose origins come from antiquity. Based on historical, economic, political, cultural and religious factors, at each stage of development, thinkers tried to give their understanding and definition of law. Each of the concepts and theories had certain positive aspects and disadvantage, revealing one or another side of such a multifaceted phenomenon as law. Modern scientists, applying new methodological techniques and the latest achievements of the humanities and natural sciences, the needs of society, continue to identify new aspects of law in order to better understand it and effectively regulate relations between people. The urgency of the outlined issue is enhanced by the active reforms in Ukraine, which requires the research of future trends in legal consciousness. Analysis of modern scientific trends in the legal consciousness indicates a gradual departure from the positivist types of legal consciousness and orientation to human as the highest social value. Ukrainian researchers pay attention to the continuity of the right to life, with the objective needs of people and their harmonious development. Therefore, modern legal consciousness presupposes compliance of legally established normative legal acts with natural law. Pluralism of scientific theories of legal consciousness makes possible to explore the essential features of law that are necessary for the establishment of universal values, to raise to a qualitatively new level the legal content of human rights and freedoms, to develop and implement a real mechanism for their protection. Modern science of law has to provide a gradual combination of positive features of all theories of legal consciousness, which will include the consideration of law as an integral, but multifaceted social phenomenon. It is pointed out that the integrative approach is not final in solving the problem of legal consciousness. Trends and prospects of modern jurisprudence in the field of legal consciousness are to identify the most rational and logical theories to determine the essence of law, which will contribute to a more complete and comprehensive research of such a multifaceted and complex phenomenon as law, which will constantly require rethinking. Keywords: legal consciousness, interpretation of legal consciousness, development of national legal science, positivist approach to legal consciousness, integrative approach to legal consciousness.
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Osiel, Mark J. "Dialogue with Dictators: Judicial Resistance in Argentina and Brazil." Law & Social Inquiry 20, no. 02 (1995): 481–560. http://dx.doi.org/10.1111/j.1747-4469.1995.tb01069.x.
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Throughout the world, judges are often asked to implement the repressive measures of authoritarian rulers. Which conception of legal interpretation and judicial role, if any, make judges more likely to resist such pressures? That question, central to Anglo-American jurisprudence since the Hart-Fuller debate, is addressed by examining recent military rule in Argentina and Brazil. In Argentina, judges were sympathetic to military rule and so criticized its “excesses” in the jurisprudential terms favored by the juntas: positivism and legal realism. Brazilian judges, by contrast, were largely unsympathetic to military rule, and so couched their criticism in terms of natural law, in order to raise larger questions and reach a broader public. Empirical study of the cases and conceptual analysis of existing theories both reveal that no view of legal interpretation inherently disposes its adherents to either accept or repudiate repressive law. Contingent political circumstances—the rulers' favored form of legal rhetoric, and the degree to which judges accept the need for a period of extra-constitutional rule—determine which legal theory fosters most resistance. But since most authoritarian rulers nominally affirm their constitutional predecessors' positive law and are often unwilling to codify publicly their most repressive policies, strict literalism usually offers the most congenial idiom for judicial resistance to such regimes.
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Choi, Naomi. "Interpretivism in Jurisprudence: What Difference Does the Philosophy of History Make to the Philosophy of Law?" Journal of the Philosophy of History 1, no. 3 (2007): 365–93. http://dx.doi.org/10.1163/187226307x229399.
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AbstractTo answer the question of what difference the philosophy of history makes to the philosophy of law this paper begins by calling attention to the way that Ronald Dworkin's interpretive theory of law is supposed to upend legal positivism. My analysis shows how divergent theories about what law and the basis of legal authority is are supported by divergent points of view about what concepts are, how they operate within social practices, and how we might best give account of such meanings. Such issues are widely debated in the philosophy of history but are often overlooked in jurisprudential circles. When the legal positivist approach to meanings is contrasted with Dworkin's interpretivism it is clear that what is needed is an alternative to both, in the form of what we might call "historical meanings" and "historical interpretation". While Dworkin's interpretivism gets it right that legal positivism is an inadequate philosophy of law to the extent that it is committed to a "criterial semantics" view of concepts, this paper argues that post-positivism in the philosophy of law need not entail a normative jurisprudence, as Dworkin would have it.
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Schulz, V. L., and S. A. Bochkarev. "Management of Legal Processes: Statement of the problem." Journal of Law and Administration 15, no. 2 (October 10, 2019): 12–20. http://dx.doi.org/10.24833/2073-8420-2019-2-51-12-20.
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Introduction. The article considers the category of management from the standpoint of history, theory and philosophy. The law and the processes of its implementation in practice have been chosen as the social context within which the importance and potential of management has been studied.Materials and methods. The article actively uses both contributions of natural science and papers written for the purpose of understanding the humani-tarian knowledge. The methodological basis of the article includes the universal method of cognizability of the world, such logical methods as induction and deduction, the achievements of comparative jurisprudence, the method of text interpretation (mainly judicial decisions and regulations).The results of the study. The paper tries to answer the questions what management is in principle, what are the possible and acceptable forms of its manifestation in jurisprudence. The meanings in which management is used in the natural and human sciences are compared. A distinction is made between the concepts of “management of legal processes” and “public administration”.Law enforcement processes are much rationalized, and law has maintenance of order as its highest goal. The absence of reference to management in the procedural legislation serves as an indirect but sure sign that governance in law does not exist in the form in which it is represented in the natural sciences.Discussions and conclusions. Subject to the above it was concluded that management in law is manifested and realized in a peculiar way. It is implemented in legal processes through decentralized principles, i.e. by the participants themselves on a parity and consensual basis. The role of guides is played by symbolic means - the principles of law and the values protected by it. The role of doers is played by instrumental means - law enforcement agencies and institutions. The role of organizes is exercised by the subjects of law (individual, society and the state), and the function of consumers is realized by the subjects of specific legal relations.
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Slezhenkov, Vladimir. "The Theory of “Smart Regulation”: The Ideological and Historical Context of Formation." Legal Concept, no. 3 (October 2021): 12–17. http://dx.doi.org/10.15688/lc.jvolsu.2021.3.2.
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Introduction: the scientific interest in studying the specifics of the formation of the “smart regulation” theory is due to both its controversial nature, novelty, practical orientation, and a certain fragmentary coverage of relevant issues in Russian jurisprudence. Methods: the methodological framework for the study is a set of methods of scientific cognition, among which the main ones are the general scientific dialectical, comparative law, logicalsyntactic methods, the semantic methods of cognition, as well as the methods of cause-and-effect analysis, forecasting, synthesis, and analysis. Results: the study reveals the theoretical background and socio-historical context of the emergence of the ideas of “smart regulation”, shows the features of their conceptualization and differences from previous scientific views on the phenomenon of legal regulation. The paper substantiates the conclusions about the need for an expanded interpretation of the ideological and theoretical foundations of “smart regulation”, whose specifics are due to the long tradition of the development of previous political and legal thought.
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Alrahawan, Mohamamd. "AMBIGUITY IN ISLAMIC LEGAL HERMENEUTICS AND ITS IMPACT ON JURISTIC DIFFERENCES: AN ISLAMIC LEGAL THEORETICAL PERSPECTIVE." مجلة الجامعة القاسمية للعلوم الشرعية والدراسات الإسلامية 2, no. 01 (June 22, 2022): 221–49. http://dx.doi.org/10.52747/aqujssis.2.01.115.
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Islamic legal hermeneutics can be identified in the writings of Muslim legal theorists. It focuses on the principles of interpreting the language of the Lawgiver for devising legal rulings on practical questions and how a language can govern a law. This paper attempts to show how ambiguity of religious texts affect legal determinations of juristic issues and to reveal the usuli approach of resolving religious ambiguous texts. It further aims at measuring whether Islamic legal theory was consistent with legal rulings derived by the Muslim jurisprudents. However, ambiguity is discussed on the level of the meaning of individual words and structures. This falls within the realm of equivocality and the interpretation of imperative forms. Though those principles were designed to show consistency between theory and practice, the outcomes were not ideal in the literal sense of the word. Legal theoretical precepts are probability maxims which are comprehensively applicable to all particulars
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Mrčela, Marin, Igor Vuletić, and Goran Livazović. "Negligent Rape in Croatian Criminal Law: Was Legal Reform Necessary?" Review of Central and East European Law 45, no. 1 (March 13, 2020): 126–60. http://dx.doi.org/10.1163/15730352-bja10002.
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This paper discusses the issue of negligent rape and liability for unreasonable belief in the victim`s consent in the context of Croatian criminal law. Modern rape law presents many challenges to both lawmakers and judges, with criminalizing negligence being only one of those challenges. This became more interesting in Croatia after amendments to the Criminal Code in 2011 (in effect since 2013), that criminalized unreasonable mistake of facts in the crime of rape. Croatian rape law has undergone significant changes related to these amendments. However, this paper focuses only on the aspect of unreasonable mistake of consent, this being both the most controversial and of great practical importance. The first section describes the elements of rape according to the Croatian Criminal Code along with an interpretation of those elements in the jurisprudence of the Croatian Supreme Court. Special attention is placed on the problem of mens rea and (un)reasonable belief in consent. The discussion also identifies the reasons for reform and the impact of the Sexual Offences Act of England and Wales (2003), which served as a model for Croatian legislators. The second section analyzes the results of research conducted by Croatian judges on the relevant status of the mistake of facts defense, as well as the importance of the victim`s resistance in terms of achieving a conviction, with special regard to the rate of rape convictions in Croatian law. The third section reviews comparative regional laws (Slovenia, Serbia, and Montenegro) with the goal of positioning the new Croatian rape law in a regional context. The last section discusses the necessity of criminalization of the negligent form of rape from the perspective of trends and standards created in Croatian theory and jurisprudence in the years prior to this amendment of the law.
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Petersen, Niels. "Alexy and the “German” Model of Proportionality: Why the Theory of Constitutional Rights Does Not Provide a Representative Reconstruction of the Proportionality Test." German Law Journal 21, no. 2 (February 2020): 163–73. http://dx.doi.org/10.1017/glj.2020.9.
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AbstractRobert Alexy is one of the most prominent proponents of proportionality in international legal scholarship. His theory has two dimensions. On the one hand, it is a normative defense of balancing. On the other hand, it seeks to provide a reconstruction of the case law of the German Federal Constitutional Court. This Article focuses on the reconstructive part of his theory. It argues that his reconstruction of the jurisprudence of the German Constitutional Court is only partly accurate. In particular, it does not provide a suitable reconstruction of the decisions in which the Court finds a statute to be inconsistent with the constitution. For this reason, the normative critique of Alexy’s theory does not necessarily translate into a critique of the jurisprudence of the German Constitutional Court’s application of proportionality or even the proportionality doctrine itself. Instead, it targets only one specific interpretation of proportionality.
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Tonkov, E. N. "Sources of law in «Russian legal realism»." Courier of Kutafin Moscow State Law University (MSAL)), no. 11 (January 14, 2021): 96–104. http://dx.doi.org/10.17803/2311-5998.2020.75.11.096-104.
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The article examines the sources of law in the discourse of Russian legal realism concept. A broad approach to the sources of law is justifi ed and the phenomena of the source and form of law as equal in meaning is considered. The author notes the pragmatization of Russian jurisprudence and insuffi ciency of paying attention only to the texts of normative legal acts. Interpretation of actions to comply with or violate regulatory requirements and criteria for evidence evaluation become more relevant in modern conditions, when the individual regulatory system of the law enforcement actor governs his actions, determines the essence and details of his decision. In order to actualize the pluralism of the source base special attention is paid to post-classical characteristics of modern law enforcement and the ideas of L. I. Petrazhitsky as the founder of the psychological theory of law. A broad understanding of the sources of law in the XXI century allows to identify current sources of regulation and re-evaluate the factors that oblige individuals to obey the will of others. According to the author, law should be considered as a result and method of real interaction of people, generating subjective rights and obligations, and as a form of communication that encourages a person to active realization of acceptable to him sources of law in a particular legal situation. Thе performed comparative analysis of legal realism in North American, Scandinavian and Russian societies allows us to consider legal realism as intermediary between law in books and practical human problems.
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Лазарев, Валерий, and Valyeriy Lazaryev. "Interpretation of Law: Classics, Modern and Postmodern." Journal of Russian Law 4, no. 8 (August 8, 2016): 0. http://dx.doi.org/10.12737/20900.
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The article expresses the views on the controversial attitudes relating to the interpretation of law at different stages of development of science in general and legal science in particular. Tracing the respective changes, the author comes to the conclusion that classics was based on the rule of law; art Nouveau was aimed to destroy the rule of law; postmodern — on departure from reality. In the postmodern world-both legislator, and his will — are all the essence of fiction. Classical science was concerned to establish the objective truth; modernism believes all truth is relative; the postmodern — denies the establishment of the truth. The author suggests the answer to the question as to where the perspectives of the science lie should be sought in the realm of conjunction of natural and humanitarian sciences. And in the context of such cognitive-information theory the author draws the attention to importance of modern scientific trend-memetics and the use thereof in the field of jurisprudence. As a subtype of memetics the author suggests to introduce the notion of lawmemetics to be employed to study the two types of the mems: the entity of legal reality and the entity of psychological reality. The substantial aspect memetics is called to be the resumption and poliform-like repetition of what was originally coded as the mem information and was designed to secure its values as applied to the new circumstances of place and time.
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Koshel, A. S. "Parliamentary procedure as a type of legal procedure." Law Enforcement Review 5, no. 2 (July 5, 2021): 170–84. http://dx.doi.org/10.52468/2542-1514.2021.5(2).170-184.
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The subject. The article examines the refraction of the doctrine of legal procedure in relation to the activities of parliament.The purpose of the article is to confirm or disprove hypothesis that parliamentary procedure is the kind of legal procedureThe methodology. The author uses formal legal interpretation of Russian legislative acts and decisions of Russian Constitutional Court and European Court of Human Rights as well as such general scientific methods as analysis, synthesis, systemic approachThe main results, scope of application. The author draws attention to the fact that at the present stage of the development of the theory of law, it can be stated that procedural social relations have developed in the parliamentary bureaucracy, which are not only regulated, but must also be regulated by procedural norms, which confirms the conclusions of the authors of a "broad" approach to the theory of legal process. However, there will be a window of opportunity for the supporters of the "narrow" approach in the parliamentary process. In accordance with the conclusions of the ECHR and the Constitutional Court of the Russian Federation, which have prerequisites even in the works of Montesquieu, the parliament, as a body with jurisdictional powers, must comply with the appropriate procedure in their implementation. Hence, the author deduces the tasks of further improving both the doctrine of parliamentary procedure and the need for clear and competent regulation of legal procedures in parliament, the ultimate goal of which is to observe and implement the rights, freedoms and constitutional guarantees of participants in the parliamentary process.Conclusions. The procedures governing the work of the Parliament and its organs are legal procedures in the broad sense of the term. This does not negate the understanding that the legal procedures of the parliament, corresponding to its quasi-judicial powers, has the nature of the jurisdictional process. This conclusion is consistently confirmed in the jurisprudence of the European Court of Human Rights and the Constitutional Court of the Russian Federation.
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LINDEN-RETEK, PAUL P. "Cosmopolitan law and time: Toward a theory of constitutionalism and solidarity in transition." Global Constitutionalism 4, no. 2 (July 2015): 157–94. http://dx.doi.org/10.1017/s2045381715000040.
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AbstractThis article seeks to confront the contemporary condition in which cosmopolitan law – meant to resonate as something citizens across borders author and live together – instead is increasingly a source of detachment, confusion, and alienation. Taking the European Union’s twin crises of democratic legitimacy and social solidarity as its starting point, the article offers a critique of existing approaches to supranational constitutionalism that are insufficiently responsive to this disenchantment. The article’s purpose, in turn, is to present perspectives from philosophy and legal theory that might promisingly recast, in this new cosmopolitan frame, our thinking about law as a mode of social integration. Specifically, the article’s central claim is that time – as a seldom-examined, yet essential dimension of law – is closely linked to law’s cosmopolitan potential and, concurrently, to the motivational resources for cosmopolitan solidarity. It is through a sensitivity to time – our awareness of the past passing into the present in anticipation of a future – that citizens can meaningfully hold together cosmopolitan law’s dual, ostensibly divergent hopes: shared commitment and self-decentring plurality. Drawing on Seyla Benhabib’s ‘democratic iterations’ and its roots in the work of Jacques Derrida and Robert Cover, the article elaborates the following two concepts: ‘cosmopolitan promise-making’, a diachronic form of cosmopolitan political agency; and ‘cosmopolitan legal narrative’, a set of plural, evolving constitutional interpretations open to mutual engagement over time. These concepts, in temporalizing our understanding of political identity and constitutional law, together serve to underwrite a cosmopolitan legal order without also thinning solidarity’s social and democratic foundations. The article concludes with a critique of the contemporary role of European courts and a concrete vision for the cosmopolitan development of EU jurisprudence. Reinterpreting Article 4(2) TEU as the right to constitutional narrative, the article advances new modalities and normative aspirations for constitutional interpretation beyond the nation-state.
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Timur, Erma Kartika. "Pembagian Harta Bersama Perkawinan Dalam Perceraian Perkawinan Beda Agama Yang Dicatatkan." Rechtidee 12, no. 1 (June 30, 2017): 67. http://dx.doi.org/10.21107/ri.v12i1.2871.
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<p>Interfaith marriage in Indonesia be able to do with supplicate a determination to District Court, and then be listed in the Civil Registry Office. In case divorce occur on registered interfaith marriages, there is legal vagueness in regulation to divide joint property marriage, its relates with article 37 Constitution Number 1 of 1974 about Marriage. The purpose of this thesis is to description, identifying and analyzing the way to divide marriage property in interfaith marriage divorce, and also to review allowed or not to make choice of law that related to article 37. This thesis is a normative research with using statute approach and analytical approach. Based on the analysis of legal materials obtained, solution to divide joint property marriage on interfaith marriage better used husband religion or customary law, it is based from analysis using intergroups legal theory, receptive in complex theory, Idris Ramulyo opinion, Lanraad jurisprudence in Manado and also using grammatical interpretation about husband and wife position in article 31 and 34 marriage law. In case lawsuit happened, there is through the District Court after divorce decision was decided by judges. Choice of law is allowed based on equally principle.</p><p> </p>
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Demin, Sergey. "The category of truth in Bakunin's political and legal theory." Advances in Law Studies 8, no. 4 (January 20, 2021): 11–15. http://dx.doi.org/10.29039/2409-5087-2020-8-4-11-15.
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The subject of the study is the problem of truth in the political and legal theory of Mikhail Bakunin. The object of the study is the social relations that form different interpretations of the concept of truth in the teachings of M. Bakunin. The author examines in detail the correlation of truth in the works of the anarchist theorist from both a philosophical and a dogmatic point of view. It is analyzed in detail in the doctrine of interspersed jurisprudence from an economic point of view, as well as the theory of knowledge, which was understood by M.Bakunin as phenomena in their pure completeness without any admixture of fantasies, assumptions or other attachments of human consciousness, in which the difference between epistemology and law is manifested. Special attention is paid to M. Bakunin's reflection on the laws of nature and lawmaking.
The main conclusions of the study are:
- the reason for the utopianism of Bakunin's teaching, in our opinion, is his rejection of the legislative consolidation of the fundamental principles of law, which in turn replaces law with morality.
A special contribution of the author to the study of the topic is the conclusion that the most developed economic liberalism in the middle of the 19th century in Russia was in Siberia, which was facilitated by the patronage of the Governor-General of Eastern Siberia Muravyov.
The novelty of the research lies in the fact that for the first time M. Bakin's ideas about truth are analyzed not from the point of view of criticism of Marxism-Leninism, but from the philosophical and legal-dogmatic side.
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Ndima, Dial Dayana. "The Resurrection of the Indigenous Values System in Post-Apartheid African Law: South Africa’s Constitutional and Legislative Framework Revisited." Southern African Public Law 29, no. 2 (December 18, 2017): 294–312. http://dx.doi.org/10.25159/2522-6800/3642.
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A constitution that recognises customary law in South Africa must prioritise indigenous African values in order to give direction to state institutions in their quest to mainstream the African worldview in legal interpretation. Its framework must ensure that the recognition of indigenous African institutions restores their cultural meaning which must, in turn, reflect custom and social practice as the roots for anchoring African concepts to their own frame of reference. In order to reverse the effects of cultural imperialism that generated the injustices of the past South Africa’s constitutional framework must also serve as an injunction enjoining state institutions to choose the living version of African law as their point of departure whenever they respond to calls to pronounce upon issues of indigenous African jurisprudence. In the South African context this task must entail effecting a change in the role of interpretive institutions from their pre-constitutional culture of denigrating African culture under the alienating repugnancy dispensation towards refashioning African law with indigenous values as envisioned by the ethos of transformation. The extent to which the constitutional institutions can contribute towards rehabilitating African law from being the pole-cat of South African jurisprudence to a credible component of the country’s justice system is the measure of their success in this difficult and unenviable mission. A clue to accomplishing this mission could be to develop a theory of re-indigenisation as a counterweight to the distorted jurisprudence that was developed by the discredited repugnancy clause of yester-year. Such a theory would persuade legal and constitutional interpreters to mainstream the African life-world to which to anchor the rules, principles, concepts and doctrines derived from the indigenous value system.
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Rep'ev, Artem. "Honorary rights and obligations: doctrine, practice, technology." Vestnik of the St. Petersburg University of the Ministry of Internal Affairs of Russia 2021, no. 1 (April 9, 2021): 26–36. http://dx.doi.org/10.35750/2071-8284-2021-1-26-36.
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The article is devoted to general theory analysis of legal categories «honorary rights» and « honorary obligations». The author puts forward and gives arguments to the hypothesis about the existence of a specific group of legal permissions and obligations which differ from other kinds of rights and legal obligations due to their peculiarities. Significant and informative consideration of «honorary rights» and «honorary obligations» both from the point of doctrine of law and historical and modern legislature as well as law enforcement practice was done. The purpose. To make up in the legal doctrine for the absence of complete idea of honorary rights and obligations as elements of the legal position of separate subjects having special legal status; reveal their characteristic features and define the risks conditioned to be abused. Methodology. Historical way of cognition, philological approach, empirical methods of comparison, descriptions, interpretations, theoretical methods of formal and dialectic logic; private-scientific methods, formal legal method, legal norms interpretation method. Results. Analysis of doctrinal sources of the Russian and International Law, jurisprudence historical landmarks, current normative legal acts, and law enforcement practice showed that honorary rights and obligations are of encouraging and stimulating nature, have an accessory character in relation to the basic opportunities and obligations of the subjects. On the basis of the establishing the elements of similarity and differentiation of honorary right with subjective right of the subject, honorary obligation with legal obligation on the whole, the aspects of their interactions and existing contradictions, an independent categorical and institutional character of honorary rights and obligations is proved, its specific qualities which differentiate
it from adjacent legal phenomena are specified. Conclusion. It is necessary to strictly differentiate the understanding and realization of honorary rights and obligations in the system of legislature and law enforcement practice by means of unification and concretization of law provisions using encouraging and stimulating instrumentation, justified and minimum usage of assessment notions and components (prominent merits, prestige, authority, etc.) that serve as the basis for receiving honorary rights and obligations, improving the legal status of subjects with regard to other participants of relation. The steps taken should contribute not only to the increasing the efficiency
of regulation of public relations through the system of legal encouragements, stimuli and advantages but decreasing discrimination and corruption risks, the opportunity of subjective discretion associated with granting similar additional opportunities.
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Holocher, Justyna. "Wolność jako zasada neokonstytucjonalna." Filozofia Publiczna i Edukacja Demokratyczna 7, no. 1 (September 10, 2018): 161–80. http://dx.doi.org/10.14746/fped.2018.7.1.7.
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The liberal principal in dubio pro libertate is the philosophical foundation of the theory of constitutional rule of law and constitutes an incorporation of moral principles into the law and order. It is perceived as a circumstance to confirm the legitimacy for the thesis of passing from rule of law to the constitutional rule of law on the philosophical and dogmatic planes. It influences the process of constitutionalization, and especially the rules governing the judicial interpretation, forming thus the legal theory of interpretation built upon the argumentative nature of the law and its weight-based application which is essentially a matter of selecting the rule applicable as the parameter of control of constitutionality. It bolsters up constitutionalism conceived as a set of legislative measures aimed at limiting the legislative authority and jurisprudence by attaching a particular importance to the liberty arguments whose value will be eventually referred to the good of the individual.